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Lanumata v Gardiner [2008] TongaLawRp 25; [2008] Tonga LR 118 (2 May 2008)

IN THE SUPREME COURT OF TONGA
Supreme Court, Nuku'alofa

CV 541/2007

Lanumata

v

Gardiner anor

Andrew J
2 May 2008

Practice and procedure – defendants sought various orders – applications opposed – court did not order security for costs – court ordered first defendant be struck out – ordered that one of claims for damages be struck out

The defendants sought an order for security for costs against the plaintiff; an order striking out the first defendant from the action and an order striking out one of the particular claims for damages against the first defendant. The applications were opposed. The application for security for costs was based to some extent on a previous case in which the defendants had been successful but may not have recovered costs. The application to strike out the first defendant was based on the fact that the proceeding was for wrongful dismissal and the first defendant was not the plaintiff's former employer but simply the manager of the plaintiff company. The issue in respect of the claim for damages that had been challenged was whether there was any cause of action supporting the alleged claim against the first defendant which was described as a claim for "victimisation, ill-treatment, harassment and unlawful conversion in requiring the plaintiff to pay the repair account for a certain motor vehicle".

Held:

1. The plaintiff was said to be employed and the court did not think that in general he should be required to pay security for costs on the chance that he could not pay costs if he were to be ultimately unsuccessful in his action. The court did not order security for costs.

2. The first defendant was not the plaintiff's former employer and not the party who it could be alleged had wrongfully dismissed the plaintiff. It was not alleged that she had acted outside her authority. She was struck out as a defendant.

3. There was no tort of victimisation, ill-treatment and harassment and the claim under this head seemed to be part of the plaintiff's claim which might relate to his alleged unlawful dismissal. As such, it could only be a claim against the employer -- not the first defendant. The paragraph containing the claim was struck out.

Counsel for the plaintiff : Mr Edwards
Counsel for the defendants : Mr Stevenson

Judgment

The defendants make application for security for costs and for various amendments for striking out of parts of the statement of claim.

But the Plaintiff has applied to file an amended statement of claim. The amended statement of claim does not significantly alter the nature of the claim. In essence the same objections would apply to the amended statement. I do not think the amendments prejudice the defendants. I propose to give leave to the Plaintiff to file the amended Statement of claim and treat the applications as applications to strike out parts of the amended claim.

The first application is for security for costs. The application was based to some extent upon previous experience in another case in which the defendants were successful but may not have recovered costs. I do not think that that is relevant to this case. The plaintiff is said to be employed and I do not think that in general the plaintiff should be required to pay security for costs on the chance that he could not pay costs if he were to be ultimately unsuccessful in his action.

I do not order security for costs.

The second application is to strike out the first defendant from this action. The plaintiff brings proceedings for wrongful dismissal against his former employer. The 1st defendant is a manager of the plaintiff company. As such she is not the plaintiff's former employer and not the party who it can be alleged has wrongfully dismissed the plaintiff. It is not alleged she acted outside her authority. She is not liable to pay any damages. The first defendant is struck out as a defendant in this case.

The third application concerns the plaintiff's claim wherein he claims damages against the first defendant Sue Gardiner, for "victimization, ill treatment harassment and unlawful conversion in requiring the plaintiff to pay the repairs account for Lisa Veimau's vehicle."

The defendants apply to strike out this claim. I do not know of a tort of victimization, ill treatment and harassment. It seems to be part of the plaintiff's claim or particulars which might relate to his alleged unlawful dismissal. The 1st defendant is not alleged to have acted outside the scope of her employment. I think firstly that it cannot be a claim against the 1st defendant. It could only be a claim against the employer. On that basis paragraph 3 of the Amended Statement of Claim is struck out.

The costs of these applications are to be costs in the cause.